Chief Executive of the Department of Corrections v E

[2018] NZHC 556

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-416

[2018] NZHC 556

BETWEEN

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant

AND

E

Respondent

Hearing:	28 March 2018
Appearances:	S Wilson for Applicant J Corby for Respondent
Judgment:	28 March 2018

JUDGMENT OF LANG J

[on application for extended supervision order]

This judgment was delivered by me on 28 March 2018 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v E [2018] NZHC 556 [28 March 2018]

Introduction

[1]                 The Chief Executive of the Department of Corrections seeks an extended supervision order (ESO) against Mr E.1

[2]                 Mr Corby, counsel for Mr E, advised me in a memorandum filed prior to the hearing that Mr E does not oppose the application. I also confirmed with Mr E directly that this was the position.2 Although the application is not opposed, the Court must nevertheless be independently satisfied that an ESO should be made.3

[3]                 There is no dispute that Mr E is an “eligible offender” under s 107C of the Parole Act, in that he was sentenced to imprisonment on 23 charges of indecent assault in 2002,4 and was already subject to an ESO at the time the present application was made.5

[4]                 Having established that Mr E is an eligible offender, it is then necessary to engage in the following three-step process:6

(a)the Court must determine whether the offender has, or has had, a pervasive pattern of serious sexual or violent offending;

(b)the Court must make specific findings as to whether the offender meets the qualifying criteria set out in s 107IAA of the Parole Act; and

(c)if those criteria are met, the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.

1      Parole Act 2002, s 107F.

2      Mr E was at present at the hearing as required by s 107G(4) of the Parole Act 2002.

3      Department of Corrections v Pori [2017] NZHC 3082 at [4].

4      R v E HC Auckland S.6/02, 9 April 2002. Indecent assault is a relevant sexual offence within the definition in s 107B(2) of the Parole Act 2002.

5      An ESO was made against Mr E on 1 August 2007 for a 10-year term. Because he was imprisoned for six months for breaching his ESO in 2009, and time does not run under the ESO while the offender is in custody (ss 107P(1)(a) and  107Q(2)  of the  Parole Act),  that  ESO  expired  on 20 December 2017. The present application was made in November 2017, before the expiry of the previous ESO, in accordance with s 107F(1)(b) of the Parole Act. Mr E is presently subject to an interim supervision order, pursuant to a Minute of Moore J dated 30 November 2017.

6      Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [13].

[5]                 Reports have been provided by  two  health  assessors  (Ms  Bouwens  and  Dr Nuth) to assist the Court in making its determination, in accordance with the statutory requirement.7 The Court may not simply “rubber stamp” the health assessors’ reports and must make its own assessment of all the relevant factors.8

Pervasive pattern of serious sexual offending

[6]                 Mr E was first convicted for sexual offending in 1991, when he indecently assaulted a girl under the age of 12 years. In 1999 he received his second conviction, this time for indecently assaulting a boy between the ages of 12 and 16. Both of the victims were unrelated to Mr E; the girl was reportedly a friend of a family member and the boy was a stranger whom he offended against in a public toilet.

[7]                 Mr E was then convicted in 2002 for 23 sexual offences committed between 1969 and 2000. Twenty-one of these offences were committed between 1969 and 1985, and the remaining two were committed in 2000. There were 12 victims in total, and all but one were females under the age of 12 years who were members of the extended family of Mr E’s wife. In sentencing Mr E on 9 April 2002, Rodney Hansen J described the offending as largely opportunistic, occurring when Mr E found the victims alone.9 The indecent acts mainly involved touching the victims’ vagina, but in some cases extended to performing oral sex on them. Mr E was sentenced to a total of six years’ imprisonment on these charges.

[8]                 There is no doubt that Mr E’ criminal history demonstrates a pervasive pattern of serious sexual offending.

Qualifying criteria in s 107IAA of the Parole Act

[9]                 Mr E acknowledges he is a paedophile, although he also reports sexual interest in adult men. He has undergone treatment for his sexual offending against children, completing individual sessions with a psychologist and attending a SAFE programme in the community. While in prison in 2003 he completed the 42-week Child Sex

7      Parole Act 2002, ss 107F(2) and 107F(2A).

8      Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32]; R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [7].

9      R v E HC Auckland S.6/02, 9 April 2002.

Offender Special Treatment Programme. Since his release from prison he has intermittently attended a relapse prevention group.

[10]              As to the first of the s 107IAA(1) factors, I consider that Mr E displays an intense desire or urge to commit a relevant sexual offence. Both psychologists assess him as demonstrating high sexual preoccupation: he regularly uses pornography and frequently engages in casual sexual relationships with adult men. Although he has not been convicted of sexual offending since 2002, he has spent much of the intervening period in prison or subject to an ESO, both of which are likely to have prevented him from offending. At his relapse prevention sessions, he has reported ongoing fantasies of sexual offending against children as well as sexual arousal on recent occasions when he has seen children. Although Mr E is now able to recognise that sexual offending against children is wrong, his intense desire or urge to commit such offending continues to be present.

[11]              As to s 107IAA(1)(b), I am satisfied Mr E displays a predilection or proclivity to serious sexual offending. His history of serious sexual offending against children spans a period of over 30 years, and he remains sexually aroused by children.

[12]              I  further  consider  that  Mr  E  has   limited  self-regulatory  capacity  under s 107IAA(1)(c). Dr Nuth observes that he has limited coping skills and uses sexual gratification to soothe himself. Since the imposition of a 10-year ESO in 2007, Mr E has been convicted of breaching the conditions of his ESO eight times. The breaches largely relate to being in the presence of children, either at family gatherings or out in public. A further breach occurred as recently as February 2018, when Mr E was found at a public park where children were playing within his view. These breaches demonstrate Mr E is unable to regulate himself, and continues to place himself in high- risk situations.

[13]              Section 107IAA(1)(d) requires that the offender displays either or both of the following:

(a)a lack of acceptance of responsibility or remorse for past offending;

(b)an absence of understanding for or concern about the impact of his sexual offending on actual or potential victims.

[14]              Mr E has made some progress in therapy. He acknowledges the harm his offending has caused to the  victims  and  accepts  responsibility for  it.  However, Ms Bouwens expresses the view that this acknowledgement is only superficial: he becomes emotionally affected, but then quickly moves on. It appears that he lacks genuine empathy for his victims. Dr Nuth considers Mr E tends to pursue his own needs at a cost to others. I consider that the requirements of s 107IAA(1)(d)(ii) are met, in the sense that Mr E does not display any meaningful understanding of the impact of his offending on victims.10

Risk of committing a relevant sexual offence in future

[15]              Having conducted various clinical tests and actuarial risk assessments, both Ms Bouwens and Dr Nuth conclude Mr E poses a high risk of committing a relevant sexual offence in the future. They note that if he was to sexually reoffend, he is most likely to do so against prepubescent or pubescent girls or boys. He is likely to gain access to victims through friends and/or relatives as he has done in the past.

[16]              I concur with these assessments and consider they are well supported by Mr E’s history of offending and his ongoing sexual preoccupation. Of particular concern is the psychologists’ observation that there are relatively few protective factors in place for Mr E. Both note that although advancing age is typically a protective factor, that does not apply in Mr E’s case. At the age of 71 he continues to display a very high sex drive, masturbating to pornography on a regular basis and using sexual arousal medication to overcome the effects of his age. It is also concerning that he has breached the terms of his ESO in recent years by being in the presence of children.

10 In the context of s 13(2)(c) of the Public Safety (Public Protection Orders) Act 2014, the courts  have held that “absence of understanding” can include an absence of any “meaningful” understanding; see Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184 at [96]; endorsed in Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120 at [67]–[68].

Term of extended supervision order

[17]              I consider it appropriate and necessary to impose a further ESO. The Department of Corrections seeks a term of ten years, which is the maximum term for which an ESO may be imposed.11 I am satisfied that ten years is the minimum period required for the purposes of the safety of the community in light of the level of risk posed by Mr E, the seriousness of the harm that might be caused to victims, and the likely duration of the risk.12 Although Mr E is now in his early seventies, I note that there is no indication that his sexual preoccupation and risk of offending is diminishing with age as with other offenders.13

Result

[18]              I make an extended supervision order in respect of Mr E for a period of ten years from today’s date.

[19]              The conditions of that order are the standard conditions set out in s 107JA of the Parole Act.

[20]              The Chief Executive also seeks the imposition of special conditions on an interim basis, until the Parole Board considers whether to impose special conditions under s 107K of the Parole Act.14 I accept there may not be sufficient time before the ESO comes into force for the Board to determine which (if any) special conditions should be imposed on Mr E.15 I therefore make an order that the special conditions set out in Schedule 1 to the Chief Executive’s submissions are to apply on an interim basis in accordance with s 107L(2A) of the Parole Act.

Lang J

Solicitors:

Crown Solicitor, Auckland

J Corby, Barrister, Auckland

11     Parole Act 2002, s 107I(4).

12     Parole Act, s 107I(5).

13     Compare Chief Executive of the Department of Corrections v T [2017] NZHC 2179 at [32].

14     Parole Act 2002, s 107IA(1).

15     Parole Act 2002, s 107IA(2).